1. Proceedings on a petition for writ of habeas corpus filed pursuant to K.S.A. 60-1501 are
not subject to ordinary rules of civil procedure. To avoid summary dismissal of a K.S.A.
60-1501 petition, allegations must be made of shocking and intolerable conduct or
continuing mistreatment of a constitutional stature.

2. The United States Constitution does not, in and of itself, create any protected liberty
interest in a particular confinement status.

3. The United States Supreme Court has recognized that liberty interests for prisoners may
be created in two ways. These interests will be generally limited to freedom from restraint
which, while not exceeding the sentence in such an unexpected manner as to give rise to
protection by the Due Process Clause in the Fifth and Fourteenth Amendments to the
United States Constitution of its own force nonetheless imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life. It has also found
a liberty interest may be implicated when state laws and prison regulations grant inmates
liberty interests to which due process protections apply. In the first situation, the liberty
interest exists apart from the State; in the second, the liberty interest is created by the
State.

4. A plaintiff asserting that the government has violated the Due Process Clause by
impugning his or her good name, reputation, honor, or integrity, must demonstrate that
(1) the government made a statement about him or her that is sufficiently derogatory to
injure his or her reputation, that is capable of being proved false, and that he or she asserts
is false and (2) the plaintiff experienced some governmentally imposed burden that
significantly altered his or her status as a matter of state law. This is sometimes described
as the stigma plus standard.

5. Just because an inmate is treated differently due to his or her classification as a sex
offender, it does not necessarily mean that these burdens rise to the level of creating a
liberty interest. There must be a showing of significant alteration of status of the prisoner
in comparison with prisoners who are not sex offenders in order for a liberty interest to be
found.

Appeal from Butler District Court; JOHN E. SANDERS, judge. Opinion filed August 4,
2006. Reversed
and remanded with directions.

Leo F. Schuyler, appellant pro se.

Julie St. Peter, of Kansas Department of Corrections, of El Dorado, for
appellee.

Before HILL, P.J., GREENE, J., and BRAZIL, S.J.

HILL, J.: Leo F. Schuyler, an inmate at the El Dorado Correctional Facility (EDCF),
sought habeas corpus relief from the district court when prison officials classified him as a sex
offender. Schuyler was so classified because he was once charged with aggravated sexual battery,
a charge that was later dismissed by the State. The district court summarily denied Schuyler's
petition ruling that this was a matter of internal prison management and was therefore best left to
"the professional staff."

Further inquiry is needed here. Employing a "stigma plus" standard, as adopted by the
Tenth Circuit Court of Appeals, we first conclude that the sex offender classification makes a
statement about Schuyler that is sufficiently derogatory to injure his reputation; that the statement
is capable of being proved false; and that Schuyler asserts it is false. That satisfies the "stigma"
portion of the analysis. But for the "plus" step of the Tenth Circuit standard, we think the court
should have inquired whether the increased responsibilities and restrictions imposed upon him by
this classification created a burden on Schuyler that significantly altered his status, especially
when compared with an inmate not classified as a sex offender. Accordingly, we reverse and
remand for further proceedings.

Facts and Prior Proceedings

In 1991, Schuyler was charged with one count of aggravated sexual battery and one count
of aggravated assault. The aggravated sexual battery charge claimed that Schuyler applied force
to another person with the intent to arouse or satisfy his or another's sexual desires. Schuyler
waived his preliminary hearing and was arraigned. Schuyler pled guilty to the aggravated assault
charge, and the State dismissed the aggravated sexual battery charge. Schuyler received a prison
sanction.

On September 23, 2003, Warden Raymond "Ray" Roberts, Jr., submitted an override
request for Schuyler to be managed as a sex offender. The reason for this request was stated as
follows: "1991 Agg. Assault offense was sexually motivated; was charged with Rape." This
override request was granted by a review panel on October 28, 2003.

Schuyler filed a grievance and then followed all the administrative procedures necessary
to perfect this appeal. Schuyler's claim was denied at every level of the process.

Schuyler filed a petition for writ of habeas corpus under K.S.A. 60-1501 in April 2005.
His habeas corpus petition was summarily reviewed by the district court, which stated:

"This is a matter of the prison internal management process and is best left to
prison
professional staff. The Court sees no constitutional issues in prison classification matters such as
the one in this case where an internal management policy was in place and used in the
classification process. Petitioner has failed to state a claim upon which relief can be granted and
his petition is hereby denied."

"Upon review of a district court's order dismissing a petition for failure to state a
claim
upon which relief can be granted, appellate courts are required to accept the facts alleged by the
plaintiff as true. The court must determine whether the alleged facts and all their inferences state
a
claim, not only on the theories which the plaintiff espouses, but on any possible theory. [Citation
omitted.]"

Schuyler alleges a denial of due process. "The issue of whether due process has been
afforded is a question of law over which [appellate courts] have unlimited review. [Citation
omitted.]" Hogue v. Bruce, 279 Kan. 848, 850, 113 P.3d 234 (2005).

We understand as well that "'[p]roceedings on a petition for writ of habeas corpus filed
pursuant to K.S.A. 60-1501 are not subject to ordinary rules of civil procedure. To avoid
summary dismissal of a K.S.A. 60-1501 petition, allegations must be made of shocking and
intolerable conduct or continuing mistreatment of a constitutional stature.' [Citation omitted.]"
Bankes v. Simmons, 265 Kan. 341, 349, 963 P.2d 412, cert. denied 525
U.S. 1060 (1998).

Tenth Circuit Cases and Sex Offender Classification

A series of Tenth Circuit cases are instructive here. In LeVoy v. Mills, 788
F.2d 1437,
1440 (10th Cir. 1986), the court stated: "The Constitution does not, in and of itself, create any
protected liberty interest in a particular confinement status. [Citation omitted.]" But in discussing
a claim that a prisoner's due process rights were violated when the prisoner was labeled as a sex
offender, the court in Chambers v. Colorado Department of Corrections, 205 F.3d
1237, 1242
(10th Cir. 2000), stated:

"'The Due Process Clause guarantees due process only when a person is to be
deprived
of life, liberty, or property.' [Citation omitted.] Finding such a violation in the prison setting is
particularly daunting. However, although an inmate's 'rights may be diminished by the needs and
exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional
protections when he is imprisoned for crime. There is no iron curtain drawn between the
Constitution and the prisons of this country.' [Citation omitted.]

"The Supreme Court has recognized a prisoner may be deprived of a liberty
interest
based on a severe change in the conditions of confinement. 'These interests will be generally
limited to freedom from restraint which, while not exceeding the sentence in such an unexpected
manner as to give rise to protection by the Due Process Clause of its own force nonetheless
imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of
prison life.' [Citation omitted.] It has also found a liberty interest may be implicated when State
laws and prison regulations grant inmates liberty interests to which due process protections
apply.
[Citation omitted.] 'In the first situation, the liberty interest exists apart from the state; in the
second, the liberty interest is created by the state.' [Citation omitted.]"

This concept of liberty interests being created by the State has been refined in a later case.
In Gwinn v. Awmiller, 354 F.3d 1211, 1216 (10th Cir. 2004), the court stated:

"'"Where a person's good name, reputation, honor, or integrity is at stake because
of what
the government is doing to him," a protectible liberty interest may be implicated that requires
procedural due process in the form of a hearing to clear his name.' Jensen v.
Redevelopment
Agency of Sandy City, 998 F.2d 1550, 1558 (10th Cir. 1993) (quoting Wisconsin v.
Constantineau, 400 U.S. 433, 437, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971)). Damage to
one's
reputation alone, however, is not enough to implicate due process protections. See Paul v.
Davis,
424 U.S. 693, 701, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976) (stating that 'reputation alone, apart
from some more tangible interests such as employment, is neither "liberty" or "property" by itself
sufficient to invoke the procedural protection of the Due Process Clause'); McGhee v.
Draper,
639 F.2d 639, 643 (10th Cir.1981) ('[S]tigmatization or reputational damage alone, no matter
how
egregious, is not sufficient to support a [42 U.S.C.] § 1983 cause of action.')

"Instead, a plaintiff asserting that the government has violated the Due Process
Clause by
impugning his or her 'good name, reputation, honor, or integrity,' Jensen, 998 F.2d at
1558, must
demonstrate that: (1) the government made a statement about him or her that is sufficiently
derogatory to injure his or her reputation, that is capable of being proved false, and that he or she
asserts is false, and (2) the plaintiff experienced some governmentally imposed burden that
'significantly altered [his or] her status as a matter of state law.' Paul, 424 U.S. at
710-11, 96 S. Ct.
1155. This is sometimes described as the 'stigma plus' standard."

It is this stigma plus standard that we now employ. We analyze the factors set forth under
the stigma plus test separately.

Our Analysis

First, it is clear that the State's classification of Schuyler as a sex offender is a statement
that is derogatory enough to damage his reputation. "We can hardly conceive of a state's action
bearing more 'stigmatizing consequences' than the labeling of a prison inmate as a sex offender."
Neal v. Shimoda, 131 F.3d 818, 829 (9th Cir. 1997). It may also be possible for
Schuyler to prove
that he is not a sex offender. Schuyler apparently was labeled as a sex offender due to the fact
that he was charged with but not convicted of aggravated sexual battery. If Schuyler would be
able to present evidence regarding this prior charge, it is possible that he could show that he only
committed the aggravated assault for which he was convicted and that the crime was not sexually
motivated. Accordingly, Schuyler's claim complies with the "stigma" factor set forth in the
Gwinn stigma plus standard. See Gwinn, 354 F.3d at 1216.

In order to understand the "plus" analysis, it is important to review the policies and
procedures followed by the prison officials. Kansas Department of Corrections Internal
Management Policy and Procedure (IMPP) 11-115 provides that inmates can be classified as sex
offenders based on their prior convictions or their custodial behavior. Under IMPP 11-115, in
order to find that Schuyler was a sex offender based on his aggravated assault conviction, the
review panel had to have found that Schuyler was

"[a]n offender whose crime of conviction is a sex crime as identified by an state or federal
statute,
an offender with a prior conviction or juvenile adjudication of a sex crime, or a person who has
ever been convicted of a crime that was sexually motivated. 'Sexually motivated' means that one
of
the purposes for which the offender committed the crimes was for the purpose of the offender's
sexual gratification. The sexual motivation of the offense may be determined through either a
judicial finding made at the time of sentencing or by information regarding the offense provided
to the Kansas Department of Corrections."

It appears that the district court should have at least held a hearing to determine to what
extent Schuyler is burdened by the sex offender label. Schuyler points to several requirements
and restrictions that govern sex offenders under IMPP 11-115 as proof that the sex offender label
imposed a burden that significantly altered his status. For example, IMPP 11-115(I)(A)(4)
requires that sex offender treatment be placed on a sex offender's inmate program plan. A sex
offender must also submit to sex offender treatment after being released from prison. IMPP
11-115(I)(B)(1). The sex offender must pay the costs of the sex offender treatment after being
released from prison, unless the sex offender can show he or she is indigent. IMPP
11-115(IV)(B). A sex offender may also have limited contact with minors. IMPP 11-115(VI). A
sex
offender is also subject to polygraph testing, both inside prison and after he or she is released.
IMPP 11-115(VIII). A sex offender is also prohibited from viewing sexually explicit material.
IMPP 11-115(IX). Schuyler also claims that his classification as a sex offender would also cause
him to be removed from his work release status because he would be moved to another facility to
attend the sex offender treatment program. Schuyler has not provided any citation in support of
this claim. Under our standard of review, we must accept this allegation as true.

The question left unanswered is how the responsibilities and restrictions listed above
compare with those of an inmate who is not classified as a sex offender. This comparison is
important in determining whether Schuyler had a liberty interest in not being classified as a sex
offender. In Bankes, 265 Kan. at 351, while discussing whether an inmate's Fifth
Amendment
right against self-incrimination was violated by a sex offender treatment program that required
the inmate to admit guilt, the court stated:

"The housing assignment given to an inmate, his or her custody classification,
granting of
parole, spending limitations at a canteen, regulation of visiting hours, withholding of good time
awards, and regulation of other daily activities which are not atypical and do not pose a
significant
hardship within a prison, do not involve a liberty interest or violate the defendant's Fifth
Amendment right by compelling him to incriminate himself and participate in SATP. [Citations
omitted.]"

Bankes shows that just because an inmate is treated differently due to his or
her
classification as a sex offender, it does not mean that these burdens rise to the level of creating a
liberty interest. It should also be noted that Schuyler might not have the restrictions and
requirements usually imposed on sex offenders after leaving prison. IMPP 11-115(I)(C)(1)
allows a sex offender to submit an override request asking that he not be managed as a sex
offender while in prison or after he is released from prison. Since Schuyler is currently confined
in prison, the impact on Schuyler after leaving prison is speculative at this point. It should also be
noted that Schuyler claims that he will be required to register as a sex offender after leaving
prison. However, no authority has been provided to support this allegation.

The district court erred in finding that Schuyler did not state a claim upon which relief
could be granted. The overwhelming authority shows that an inmate that has not been convicted
of a sex offense may have a liberty interest that is entitled to due process protections in not being
classified as a sex offender if the stigma plus standard is shown.

The State claims that the stigma plus standard is incorrect for reviewing a due process
violation. The State claims that the appropriate standard can be found in Turner v.
Safley, 482
U.S. 78, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987). In Turner, inmates challenged
prison
regulations that limited mail access and marriage. In making a determination regarding whether
the regulations violated the inmates' constitutional rights, the Court stated: "[W]hen a prison
regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably
related to legitimate penological interests." 482 U.S. at 89.

The present case is distinguishable from Turner in that Schuyler is not
directly attacking
the constitutionality of IMPP 11-115. Instead, Schuyler is only claiming that he was denied due
process by being classified as a sex offender under the circumstances of this case. The fact that
the State was following the mandate of IMPP 11-115 does not change Schuyler's claim.
Accordingly, the reasoning in Turner is not applicable here.

Thus, we reverse and remand to allow the district court the opportunity to hear evidence
and determine whether Schuyler has shown that he has a liberty interest under the stigma plus
standard. If the district court finds that Schuyler does have a liberty interest in not being
classified as a sex offender, the court should then proceed to determine whether Schuyler
received the process he was due.